If you have received a
demand letter regarding “IKS” reception of the Dish
Network signal, the evidentiary basis for it is
gathered by professional investigators. Unless they can be
convinced that they have no claim, or you negotiate a settlement, their
lawyers (Hagan Noll and Boyle LLC) will initiate a legal proceeding
against you in your local federal court.

Signal
piracy and unauthorized streaming prosecutions are generally conducted pursuant to the Federal Communications Act (Title 47 U.S.
Code), the Digital Millennium Copyright Act (DMCA), and the "Wiretap Act" (Title 18 U.S. Code), all complex
and little understood areas of the law. Certainly, it will be very
difficult for you to find a local lawyer who is familiar with it all. In
fact, many of my clients are actually other lawyers, who, having been
called upon by one of their regular clients for help in this kind of
situation, require my assistance to first understand the issues
themselves. Moreover, I know of no one else on the defense side with
my knowledge and experience as gained during the defense of hundreds
of these cases.

Do
not default (fail
to respond to a Summons and therefor
give the claimant the opportunity to magnify their claim against you in
your absence; moreover, judges don't look kindly upon those who
ignore a Summons). The consequences of ignoring this will lead to a
significant federal judgment against you. A signal piracy
case can run into five figures depending upon how the claimant
presents the facts and the discretion of the judge - and in the case of
distributors or resellers, minimum damages start at five figure sums.
Moreover, as piracy acts are associated with the tortious act of
conversion, such a judgment generally cannot be vacated in
bankruptcy.

Understand
that as these are civil (rather than criminal) cases, the burden of
proof is “preponderance of the evidence” or “which
is the most likely” - not “proof beyond a
reasonable doubt”. Accordingly, civil cases are generally much
easier to prosecute (and therefore harder to defend) than criminal
cases.

Moreover,
it is very
important to note that the signal
provider (or rights owner) enjoys a unilateral (one-sided) claim to
attorney fees.
That is: once a lawsuit
commences, and unless you prevail, the DMCA gives a judge discretion
to charge Nagrastar's attorney fees to you (and Title 47 cases give the
judge a legal obligation to so do). If, however, defendant wins,
defendant has no such rights. (Doesn't sound fair,
does it? However, it is true!)

Beware
of legal
misinformation and impractical guidance on the web, such as: "innocent
infringer" or "non-use" defenses.
These are basically "false hope" defenses, for unless can claim you could not make your purchased IKS decryption code work and
you can produce proof that you made an effort to claim a refund from
the seller - for if you can, and your purchase was a "one-of',
Nagrastar should immediately withdraw their claim. Going to court will not be necessary; nor will you need to hire me.

About "reselling":
These claims arise when decryption code purchases are well in excess of the
average IKS end user's needs. Accordingly, it is taken as "likely" that
IKS decryption code is being passed to others (it is not necessary to "sell" it - even
a gift of IKS decryption code to a family member is considered "reselling"). If you
will peruse the relevant anti-piracy statutes you will discover that
the damages schedule for resellers can be about 10 times that of end
users. Relevant U.S. anti-piracy statutes can be downloaded here.

As
to going to court: your statutory exposure to considerable assessments
for both Nagrastars' legal expenses and "costs" will put you at an
extreme disadvantage. Indeed, the experience could leave you wishing
you had acceded to Nagrastars' original demands. Moreover, in the event
you have made other purchases of IKS decryption code which are (as yet) undiscovered
by Nagrastars' investigators, you will be the recipient of yet
another"demand letter, even if you were to win the first case. In fact, "court" is not a good place for a
defendant in an electronic piracy case to be.

But
if you settle, will you be getting the best deal? Remember also: you
will be paying for a "release", the terms of the which are both
important and variable. Moreover, these settlements involve future
injunctive obligations which are exclusive of the settlement sum.

It
is best to have this matter professionally settled. I have 20 years
experience in this highly specialized area of the law - and if
settlement is advised, I will negotiate the very best settlement for
you. Download
my Consultation Retainerhere.

The
prime movers in the prosecution of end user signal piracy were the
cable TV companies – Cablevision in particular.

As
to satellite piracy, Directv was at the forefront of civil
litigation. Just about all of the significant case law as to
satellite piracy was due to the litigation initiatives of Directv. By
2005, just about all of the significant legal precedents had been
established, and were therefore available to Echostar. A listing,
together with brief summaries of the cases involved appears below.

As
to Echostar (Dish Network), their
anti-signal theft initiatives had, until recently, primarily taken
two forms: prosecution of both sellers and resellers of devices and
prosecution of end users who have submitted or returned unlawfully
modified receivers to Echostar. Recently, however, they are doing
electronic monitoring in order to detectunlawful IKS activity, and
have recently proceeded against “Dark Angel”, and others.

A
successful seller or reseller prosecution typically results in the
client list falling into the hands of the signal provider –
sometimes by writ of seizure; sometimes by accord.

In
any event, here follows the significant satellite piracy case law,
followed by some explanatory comments:

June
15, 2004- 11th
Circuit dismisses DTV’s 18 U.S.C. § 2512 claim.This
is a significant, but very limited, appellate decision against Direct
TV. The Court decided that DTV has no civil right of action against
those who simply possess pirate devices in violation of 18 U.S.C. §
2512. See Directv
v. Mike Treworgy
[It is important to note that this decision has no effect upon
DTV’s right to prosecute civil claims against those who
unlawfully intercept their signal or traffic in devices.]

June
3, 2004- Judge
has discretion in awarding damages pursuant to 18 U.S.C. § 2520.See
Directv Inc. v. Michael Brown. [It
should be noted this is an 11thCircuit
(Alabama, Florida, Georgia) case. This issue remains unresolved in
both the 2ndand
3rdCircuits
(New York, Connecticut, Vermont, Pennsylvania, New Jersey, Delaware
and Virgin Islands. That is: some judges make awards pursuant to the
section (perhaps because they believe it mandatory); some do
not.

Mar
3, 2004- Beware
of high statutory damage claim DTV (and Echostar) has recently madepursuant
to47
U.S.C. § 605(e)(4). Echostar (and occasionally
Directv) now take the position that a modification of the “access
card” is a violation of
47 U.S.C. § 605(e)(4). If you study 47
U.S.C. § 605(e)(3)(C)(i)(II) you will see that the minimum
statutory damages for each violation of 47
U.S.C. § 605(e)(4) is $10,000.00, while minimum statutory
damages pursuant to 47
U.S.C. § 605(a) is $1,000.00. Although I believe this
claim can be successfully defended on the merits, you must now be
extremely careful not to permit a case against you to go into
default. That is: if a Complaint against you contains this claim, you
absolutely must Answer and defend.

Jan
23, 2004- DTV
win in South Carolina.After
deliberating for only two hours jury finds that three defendants
unlawfully intercepted DTV’s signal. Download
a copy of newspaper article

Dec
30, 2003 District
of Minnesota brings scholarly and succinct clarity to the perplexing
issue of whether or not DTV has a right of civil action for “the
manufacture, distribution, possession of …intercepting…devices”:Download
a copy of DTV v. Bertram.

Oct
9, 2003 An
observation on the “class action” against DTV:Briefly
put, the civil RICO class action against Direct TV alleges that the
“Demand Letter” campaign, based upon insufficient and
uncorroborated evidence, is tantamount to organized extortion,
forcing people to pay enormous penalties that are unrelated to
Directv’s actual damages. (You can download
a copy of the Complaint,
as filed in the Central District of California.) Apparently,
all of this has not been lost on DTV. I note that memberships of
record at pirate websites (DTV has seized records from several former
sites) are occasionally being set forth to corroborate their
allegations as to “device” purchases- and they appear to
be consistent in following up the demand letters with lawsuits (even
when marginal cases are involved). Accordingly, your editor is
compelled to the conclusion that Direct TV has taken a decision that
the best defense is a good offense (which in this case it probably
is). Certainly, the issuance of threatening “Demand Letters”
without a demonstration of DTV’s willingness to follow-up and
prove their position in court would make their legal defense of the
civil RICO class action considerably more difficult.

Sept
4, 2003 Defendant’s
motion to dismiss DTV’s complaint for “failure to state a
claim” is denied. DTV is to have the opportunity to prove
its case.Download
DTV v. Cardona.

July
31, 2003: DTV
re-dux. Judge in Karpinsky case (immediately below) reinstates
dismissed DTV case. Based
upon evidence introduced by DTV that another Karpinsky with the same
address purchased a DTV compatible system from Radio Shack, the judge
reconsidered and vacated the dismissal; thereby reinstating Direct
TV’s case against Karpinsky. Download
DTV v. Karpinsky II
(sic)

July
16, 2003: DTV
revisits the “Big Apple”; this time winning an award of
$5,500 for damages and attorney fees for a one “device”
case (if
indeed this was a “device”). Download
DTV v. Hamilton II
(sic)

June 11, 2003:
Settlement alert- use extreme caution.
Direct TV has made recent and major changes in the terms of
their proposed SETTLEMENT AGREEMENT AND RELEASE (which
issues from their office in El Segundo, California). It is clear to
me that these changes have three goals: to effectively eliminate any
class action claim the end user may have; to change the location for
any future judicial proceeding against you from the state where you
reside to California (a major logistical advantage to DTV); and they
have modified their terms to make it much easier to recommence
prosecution of you (even if the settlement sum has been paid in
full). The current boilerplate of the agreement expresses important
points in inscrutable legalese. Considerable legal training is
required to fully understand it.

June
6, 2003: Closed end-user cases in Middle District of Florida,
including default
judgment for Directv for $30,825.00 (inclusive
of attorney fees) for a three “device” case. Download
decision
, which demonstrate how easily (and without a hearing) a plaintiff
can secure a default judgment against you; even if the default
judgment is inconsistent with the law- which this one is.

You
should know that a successful lawsuit against an individual for in
home unauthorized decryption can potentially result in a judgment for
$10,000.00 (and possibly very much more if the pleading requests
damages pursuant to 47
U.S.C. § 605(e)(3)(C)(i)(II)) for each violation, plus
mandatory attorney fees and full costs. Importantly, the relevant
statutes set forth both civil and criminal penalties. As a lawyer
with considerable experience in defending signal-theft cases, and
with the understanding that I have oversimplified the issues a little
bit, I offer you the following observations:

Two
preliminary notes:

The
referenced U.S.C. sections herein demand careful reading: among other
things, they are a composite of both criminal and civil violations
and actual and statutory damages. Fortunately, the LII (legal
information institute) sets forth the statutes in an indented fashion
that is inclined to make the task of reading easier (at least
visually). Your editor expresses his gratitude to them for their
public service in permitting “links”.

The
remarks on this page are addressed only to satellite signal theft
cases.

In
essence, either Directv’s or Echostar’s lawsuit is
saying this: You acquired and used pirate devices to
engage in unauthorized reception of our encrypted signals; it’s
illegal; we suffered economic injury; we want damages, and we want a
court to tell you to stop it.

Signal theft from
Directv (Dish Network utilizes different systems, but the legal
principles are exactly the same.) is about the “access card”
or “CAM”, which is a programmable computer chip imbedded
in a card (generally referred to as a “smart-card”).
Satellite service providers change or modify their data streams (and
their corresponding “access cards”) with some regularity.
For example: to date, DTV has deployed five different generations
(designated by DTV as “periods”) of “access cards”
and corollary data-streams. At present, DTV has taken down its
“Period 3” (“Hu Card”) data stream, leaving
its “Period 4” stream (and a later “Period 5”
version), which as of the date of this revision (08/01/07) continues
to be a significant challenge to the hacking community. Data-stream
switchovers are an initiative that is calculated to defeat piracy.

Although it should be
regarded as outdated as to the specific technology deployed, the
following still remains of value as an aid to understanding the law.
Accordingly, your editor has both indented it and set it forth in
smaller font:

I believe it improves
understanding to divide unauthorized initiatives into two classes:
“primary initiatives” and “secondary” or
“supportive” initiatives. I consider the following to be
“primary initiatives”:

The use of access
cards
that have been programmed (without authorization) to decrypt
encrypted signals. This programming had been done professionally or
by the end-user through the use of various devices such as: “loader”
or “programmer” (“reader-writer”).

Substitutes for the
“access card” such as:

“Emulation”,
which requires the use of three devices (“emulator board”,
card-reader, and computer with two serial ports) to “emulate”
what the access card's microchip does. Or, in the Echostar
venue, devices that simulate the access card, such as the “Atmega”

In order to
understand
a “supportive initiative”, you need first to know that
signal providers use electronic initiatives known as ECM’s
(Electronic Countermeasures) to disable unauthorized cards and
software. A “supportive” initiative is an effort to
rehabilitate an access card that has succumbed to an ECM. This is the
application for devices such as the “unlooper” and
“boot-loader”. As some “unloopers” can
be utilized to read/write “access cards”, they can also
be utilized for the card-reading function of the emulation process.

In any event, I make
the distinction between “primary” and “secondary”
initiatives for the following reason: As to damages, “duration”
of illegal activity (the length of time for which unauthorized
reception continued) is a major issue. If the court determines that
unauthorized reception took place, it will then greet the issue of
damages (what this is going to cost you). The delivery of a “primary
initiative” device will frequently (but not necessarily) mark
when the unlawful activity commenced (which means that it tends to
limit “duration”). On the other hand a court
determination of unauthorized reception involving a “secondary
initiative” device (implying an effort to rehabilitate a
debilitated device) carries with it an inference of unlawful
reception that occurred before the “secondary initiative”
device arrived, therefore making the commencement of the
“duration” period open ended.

Title
47 U.S.C should not be confused with Title 18 U.S.C. They are
separate titles; each with it’s own set of civil and criminal
penalties; and importantly, each with a differing Statute of
Limitations period and differing means for calculating the accrual
thereof.

The
18 U.S.C. sections referred to in the correspondence from Directv are
within sections commonly referred to as the “Wiretap Act”
(including, but not limited to: 18
U.S.C. § 2511; 18
U.S.C. § 2512; 18
U.S.C. § 2520) The “Wiretap Act”
is a lengthy piece of legislation which provides both criminal and
civil penalties for surreptitious interception of certain
communications, including satellite communications, and for the
distribution or possession of associated equipment or devices.

The
idea that Direct TV has no right of civil action pursuant to 18
U.S.C. § 2512 (“the manufacture, distribution,
possession of …intercepting…devices”) is winning
wide, but not universal acceptance*. See Directv
v. Mike Treworgy.
However, the viability of Direct TV’s right of civil action
pursuant to 18
U.S.C. § 2511 (unauthorized interception or use of the
signal) is not disputed. Very importantly: even if unauthorized
reception can be proved, there is not necessarily identity between
the number of “pirate access devices” in issue and the
“device” count which may be a determining factor in (47
U.S.C. § 605(a)) civil damages.

*The
variations in case law and differences in the interpretation of
federal statutes can be credited to the organization of the federal
court system into three levels: Supreme Court, Circuit Courts, and
District Courts; a Circuit Court having appellate jurisdiction only
over the District Courts within the Circuit. By way of relevant
example, take the Bertram case: Bertram was decided in the District
of Minnesota, which is in the Eighth Circuit. If DTV elects to appeal
the decision, the appeal will be heard by the Eighth Circuit. If the
Eighth Circuit affirms, the precedent will be binding on all District
Courts within the Eighth Circuit, but not the other Circuits. Only
the Supreme Court can bring uniformity to all of the various
Circuits- and very few cases are accepted for review by the Supreme
Court.

47
U.S.C. § 605(e)(3)(C)(i)(II) provides statutory damages of
$10,000.00 to $100,000.00 per violation (per device) for manufacture,
modification or distribution of devices. Please mark it well
that in the “Title 47” venue, “distribution”
damages are available without the need to prove unauthorized
reception of the signal. Moreover, the statutory test for
distribution is disassociated from the making of a profit. Here
follows the actual excerpt from the statute:

Any
person who manufactures, assembles, modifies, imports, exports,
sells, or distributes any electronic, mechanical, or other device or
equipment, knowing or having reason to know that the device or
equipment is primarily of assistance in the unauthorized decryption
of satellite cable programming, or direct-to-home satellite services,
or is intended for any other activity prohibited by subsection (a) of
this section, shall be fined not more than $500,000 for each
violation, or imprisoned for not more than 5 years for each
violation, or both. For purposes of all penalties and remedies
established for violations of this paragraph, the prohibited activity
established herein as it applies to each such device shall be deemed
a separate violation. 47
U.S.C. § 605(e)(4) [editors note: together with a right of
civil action for the damages referenced above]

A decision as to
whether to seek an immediate discontinuance based upon error or
insufficient evidence; await a lawsuit; settle; or having been sued,
to litigate or settle, is driven by three basic considerations:

An
understanding of your legal position, which requires a competent
evaluation of the factual circumstances associated with
your individual situation;

if
a decision to settle is taken, in return for the settlement sum you
will receive a “release”-
the importance of the terms of
which cannot be over emphasized;

the
settlement sum, which is negotiable- if in fact settlement is
recommended.

The
Law Office of Gary Ruff presents the preceding as a public service.
Gary is experienced in defending against cable and satellite TV
company claims for signal theft, including unauthorized decryption
and illegal or unauthorized possession of decoding equipment. His
experience and familiarity with the subject, together with “economies
of scale”* permit him to provide these services for very
reasonable fees.

For example: the vast
majority of necessary court papers, discovery demands, and motions
used in defending these claims are already in our computers. When
that is the case, we don’t have to charge you to research and
write a new document; instead, we charge you considerably less to
edit and submit the one in our files.